Citation Nr: 20021812 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 13-30 860 DATE: March 27, 2020 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected posttraumatic stress disorder (PTSD), is granted. REMANDED Entitlement to service connection for peripheral neuropathy of the right and left lower extremities is remanded. Entitlement to service connection for hypertension (HTN) is remanded. Entitlement to service connection for a lung disorder to include asthma, emphysema, and pulmonary embolism (claimed as blood clots) is remanded. Entitlement to service connection for a skin disability (claimed as a skin cancer) is remanded. Entitlement to service connection for blood clots in the bilateral legs is remanded. Entitlement to service connection for chronic kidney disease is remanded. FINDING OF FACT The Veteran’s OSA was aggravated by her service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for OSA, to include as secondary to service-connected PTSD, are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from January 1966 to November 1973. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. These matters were previously remanded in June 2015 and November 2017 for further development. The Board finds that there was substantial compliance with its June 2015 and November 2017 remand directives as they pertain to the issue decided herein. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D’Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 3 8 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disorder. 38 C.F.R. § 3.310(a). To establish service connection on a secondary basis, three elements must be met: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and service-connected disability. Wallin v. West, 11 Vet. App. 509 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for OSA, to include as secondary to service-connected PTSD, is granted. The Veteran seeks service connection for OSA, to include as secondary to service-connected PTSD. The Board finds that service connection on a secondary basis is warranted. The first and second elements of Wallin are met. July 2019 VA examinations and treatment records confirmed OSA diagnosis. Additionally, the Veteran is service-connected for PTSD. As to the third element, in December 2019, a private physician, Dr. C.C., M.D., opined that the Veteran’s OSA, was at least as likely as not aggravated by her PTSD and medication used to treat her PTSD. Dr. C. cited to review of the entirety of the claims file including clinical records, diagnostic testing, VA examinations, as well as conducting in-person examination/interview. In addition, Dr. C. considered and provided relevant current medical treatise evidence. The opinion is considered highly probative and well rationalized against the evidence of record. There is no opinion to the contrary. Instead, the record merely contains opinions from examiners addressing direct service-connection. As the three Wallin elements have been satisfied, entitlement to service connection is granted. In conclusion, the evidence shows a current diagnosis of OSA and medical evidence showing a link between the Veteran’s current disability and his service-connected PTSD. In sum, based on the analysis above, when resolving the benefit of the doubt in favor of the Veteran, the Board finds that service connection for OSA is warranted. The Board notes that, in reaching this conclusion, the benefit of the doubt doctrine has been applied where appropriate. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53. REASONS FOR REMAND Entitlement to service connection for peripheral neuropathy of the right and left lower extremities, for HTN, for a lung disorder, for a skin disability, for blood clots in the bilateral legs, and for chronic kidney disease are remanded. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s remaining claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. These matters were previously remanded for addendum opinions. However, the opinions obtained in October 2019 contain inadequate rationale. For each opinion provided, the examiner indicated that there was insufficient medical evidence to support service-connection. However, the examiner provided no rationale to support these conclusory statements, as a result the opinions are inadequate and require clarification. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In addition, the Board specifically directed consideration and discussion of records documenting in-service treatment, the Veteran’s lay contentions, and treatise. The opinions are negative for discussion of any of the Board specified pieces of evidence. As a result, a Stegall violation has occurred. Stegall, 11 Vet. App. at 271. Finally, as the Veteran is now service connected for OSA, an opinion as to its relationship, if any, to his claimed respiratory condition should be obtained. Given the above, addendum opinions are required. Due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the record. The matters are REMANDED for the following action: 1. Obtain updated treatment records. 2. Forward the claims file to an examiner other than the October 2019 VA examiner. The contents of the claims file to include a copy of this REMAND MUST be made available and reviewed. The need for an additional examination is left to the discretion of the examiner. After reviewing the claims file, the clinician is asked to respond to each of the following: (A) Identify all manifestations of the Veteran’s claimed peripheral neuropathy. (1) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s peripheral neuropathy had its onset in, or is otherwise related to his period of service, to specifically include in-service herbicide exposure? The rationale for any opinions offered should be provided. (B) Identify all manifestations of the Veteran’s claimed hypertension. (1) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s hypertension had its onset in, or is otherwise related to his period of service, to specifically include in-service herbicide exposure? The examiner should consider and comment upon the findings pertinent to hypertension in the NAS study, referenced above, entitled Veterans and Agent Orange: Update 2012. The rationale for any opinions offered should be provided. (C) Identify all manifestations of the Veteran’s claimed skin disability. (1) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s skin disability had its onset in, or is otherwise related to his period of service, to specifically include in-service herbicide exposure? The rationale for any opinions offered should be provided. (D) Identify all manifestations of the Veteran’s claimed lung disability, to include asthma, emphysema and pulmonary embolisms. (1) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s lung disability, to include asthma, emphysema and pulmonary embolisms had their onset in, or is otherwise related to his period of service, to specifically include in-service herbicide exposure? (2) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s lung disability, to include asthma, emphysema and pulmonary embolisms were caused OR aggravated by his service-connected OSA? For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. The rationale for any opinions offered should be provided. (E) Identify all manifestations of the Veteran’s claimed deep vein thrombosis, or any other disability manifesting in blood clots of the legs. (1) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s deep vein thrombosis, or any other disability manifesting in blood clots of the legs had its onset in, or is otherwise related to his period of service, to specifically include in-service herbicide exposure? The rationale for any opinions offered should be provided. (F) Identify all manifestations of the Veteran’s claimed chronic kidney disease. (1) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s chronic kidney disease had its onset in, or is otherwise related to his period of service, to specifically include in-service herbicide exposure? A full and complete rationale is required for any opinion provided. The examiner is advised that the October 2019 addendum opinions were deemed inadequate because they were conclusory and contained no rationale. The examiner is advised that the Veteran is presumed exposed to herbicides due to his service in Vietnam. The examiner is reminded that simply because a disability is not on the list of disorders VA presumes to be related to herbicide exposure may not serve as the sole basis for a negative nexus opinion. Therefore, any negative opinion must be based upon relevant diagnostic testing, current literature, or other adequate basis. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Julie C. Unger Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. L. Burroughs, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.